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Fall 2008 Conference Notes

"Service Animal" defined

From the DOJ's Notice of Proposed Rule Making (http://www.ada.gov/NPRM2008/titleii.htm)

"Service animal"

Although there is no specific language in the current title II regulation concerning service animals, title II entities have the same legal obligations as title III entities to make reasonable modifications in policies, practices, or procedures to allow service animals when necessary to avoid discrimination on the basis of disability, unless the modifications would fundamentally alter the nature of the service, program, or activity. 28 CFR 35.130(b)(7). In order to qualify for coverage under title II, a person must be a "qualified individual with a disability," which is defined as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 28 CFR 35.104. The Department is proposing to add to the title II regulation the same definition of "service animal" that it will propose for the title III regulation. The title III regulation currently contains a definition of "service animal" in § 36.104.


The current definition of "service animal" in § 36.104 is, "any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items." The Department would modify that current definition, and add the same definition, as modified, to the title II regulation at § 35.104. The changes that would be made to the title III definition, and that would be incorporated in the title II definition are as follows:


  1. Remove "guide" or "signal" as descriptions of types of service dogs, add "other common domestic" animal, and add "qualified" to "individual" in the Department's current definition;
  2. Remove "individuals with impaired vision" and replace it with "individuals who are blind or have low vision;"
  3. Change "individuals with impaired hearing" to "individuals who are deaf or hard of hearing;"
  4. Replace the term "intruders" with the phrase "the presence of people" in the section on alerting individuals who are deaf or hard of hearing;
  5. Add the following to the list of work and task examples: assisting an individual during a seizure, retrieving medicine or the telephone, providing physical support to assist with balance and stability to individuals with mobility disabilities, and assisting individuals, including those with cognitive disabilities, with navigation;
  6. Add that "service animal" includes individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, or mental disabilities;
  7. Add that "service animal" does not include wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including any breed of horse, pony, miniature horse, pig, and goat), ferrets, amphibians, and rodents; and
  8. Add that animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being are not service animals.